SENATE 


62d Congress 1 
2d Session J 


j Document 
l No. 665 


THE INITIATIVE AND 
REFERENDUM 


REMARKS 

OF 

HON. FRANK E. GOVE 

IN THE 

COLORADO STATE SENATE 

AUGUST 19, 1910 



PRESENTED BY MR. GUGGENHEIM 
May 13, 1912.—Ordered to be printed 


WASHINGTON 

1912 













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ussy i g jcji? 


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THE INITIATIVE AND REFERENDUM. 







The senate having under consideration a bill (H. B. No. 6, by Mr. Skinner and Mr. 
Helbig) for an act to submit to the qualified voters of the State of Colorado an amend¬ 
ment to section 1 of Article V of the constitution of the State of Colorado, providing for 
the initiative and referendum— 

Mr. Gove said: 

Mr. President, I was opposed to this measure at the last session of 
the general assembly. I believed it to be inconsistent with our 
established institutions. In actual operation I could regard it as 
productive only of harm to the people of this State. These conclu¬ 
sions, reached after but little consideration, in the disorder and haste 
of an active session, have been confirmed by a deliberate and more 
careful examination of the subject. I am to-day profoundly 
impressed with the fundamental danger of this pretended reform. 
It is subversive of representative government. To my mind, its 
advocates are contemplating a long step backward, not forward, in 
the application of principles of sound government as accepted and 
applied in this country since its foundation. 

Those who understand what is meant by the initiative and refer¬ 
endum are comparatively few in number. Of those who have a more 
or less hazy impression of its general purport, a few only have read 
this or any other similar bill. Still fewer have given the subject a 
single hour of careful consideration, not to say dose analysis. Not 
one man in a thousand can intelligently discuss its history or the 
principles upon which it is based. Not one man in ten thousand can 
foresee with certainty the ultimate result of its adoption upon the 
essential features of our existing form of government. Yet there are 
those who peremptorily demand that this body close its eyes and rush 
this measure to final passage, irrespective of its merits or defects, and 
heedless of the possible, and, as I see it, certain, injurious consequences 
to the people of this State and the system of government under which 
we live. A great man long ago asserted that, to form a good system 
of government for a single city or State, however limited as to terri¬ 
tory or inconsiderable as to numbers, requires the strongest efforts of 
human genius. I submit that lesser minds should long deliberate 
before attacking the very vitals of a system which certainly had its 
origin in human genius, and which, generally speaking, has produced 
better results than any other yet devised. 

But we are told by some upon whom no responsibility for our action 
rests, that we have no right to deliberate upon, much less decide, the 
grave questions of legislative policy involved in this and other meas¬ 
ures. We have been instructed by certain members of the press, by 
the chief executive of the State, and by a number of partisan political 
conventions and others, that it is our duty, irrespective of our personal 

3 



4 


THE INITIATIVE AND REFERENDUM. 


views and convictions, to enact this measure into law. Every pres¬ 
sure which ingenuity could conceive has been brought to bear to 
coerce the members of this body to do their duty, not as they, but as 
others, see it. 

For myself, I protest against all attempted interference by the 
executive department of the State with the aTairs committed by the 
constitution to this department. I am opposed to and resent all 
political, partisan, caucus, and other attempts to improperly influ¬ 
ence, not to say compel, a legislator to cast a vote contrary to his best 
judgment at the time such vote is cast. Prior to the election in 1908, 
when it was sought to secure my pledge to vote for what have since 
been so frequently characterized as platform measures, I declined to 
become so obligated. I said, in writing, that I would “vote for or 
against any specific law according as it commends or fails to com¬ 
mend itself to my best judgment in view of the information then avail¬ 
able and the conditions then existing.” That position seems to have 
been regarded as correct by the people of this city. If it was correct 
then, it is correct now. In any event, I have sought to pursue here 
the conduct outlined then, and I shall continue so to do. If those 
who sent me here believe that my position is incorrect, they are under 
no obligation to send me here again. It is the subject of the deepest 
regret to me that my convictions have compelled me to act otherwise 
than in accordance with what I know is the sincere desire of friends 
for whom I must always retain the highest regard, but I believe the 
position which I have assumed to be correct, and I can not change it. 

The members of this legislative body should represent their State 
first, their political party afterwards. Party expediency and parti¬ 
san considerations should influence them no more than personal 
attachments or the importunities of their friends, however honest and 
sincere. No manufactured emergency, nor any real or imaginary 
vicissitude of partisan policy, should be permitted to control our 
action here. If upon any given measure I believe my political party 
to be right, I shall support that measure. If, in my opinion, the 
passage of a given measure will operate to the temporary advantage 
of my party, but to its ultimate undoing, and at all events to the 
disadvantage of the State, I will oppose it. 

The legislatures of this and other States, and of the Nation, should 
and must be free to deliberate upon and decide all questions legiti¬ 
mately within their constitutional sphere. Corporate and financial 
interests and so-called boss dictation should be ignored, no less than 
the unreasonable importunities and undue pressure, direct and 
indirect, of overzealous partisans, ambitious politicians, seekers for 
public office and well-meaning reformers. It is just this sort of thing 
to which the advocates of many intended reforms properly protest, 
and yet they themselves are chargeable with the same indiscretions 
when their measures are presented here for consideration. A legis¬ 
lator-should be permitted to act deliberately, calmly, and, above all 
else, independently. 

If my conception of the rights and duties of a legislator differ from 
those of others, they are at least by no means novel. When, in 1850, 
the Legislature of Massachusetts attempted to instruct Mr. AVeb- 
ster, then United States Senator from that State, upon his duty rela¬ 
tive to the subject of slavery, he replied that there was no public 


THE INITIATIVE AND REFERENDUM. 


5 


man who required instruction more than he, or who required infor¬ 
mation more than he, or desired it more heartily; but he did not like 
to have it in too imperative a shape. He saw no propriety in one set 
of public servants giving instructions and reading lectures to another 
set of public servants. Each was responsible to his own master, his 
constituents. And he bluntly added: “If the legislatures of the 
States do not like that opinion, they have a good deal more power to 
put it down than I have to uphold it.” 

Still further back, we find the classic address of Edmund Burke to 
his constituents in the city of Bristol. Replying to a suggestion that 
he, as their representative in Parliament, was bound by the coercive 
authority of their instructions, he said: 

Certainly, gentlemen, it ought to be the happiness and glory of a representative to 
live in the strictest union, the closest correspondence, and the most unreserved com¬ 
munication with his constituents. Their wishes ought to have great weight with him; 
their opinions high respect; their businesss unremitted attention. It is his duty to 
sacrifice his repose, his pleasures, his satisfaction, to theirs; and above all, ever and 
in all cases, to prefer their interest to his own. But his unbiased opinion, his mature 
judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, 
or to any set of men living. * * * 

My worthy colleague says his will ought to be subservient to yours. If that be all, the 
thing is innocent. If government were a matter of will upon any side, yours, without 
question, ought to be superior. But government and legislation are matters of reason 
and judgment, and not of inclination, and what sort of reason is that in which the de¬ 
termination precedes the discussion; in which one set of men deliberate and another 
decide; and where those who form the conclusion are perhaps 300 miles distant 
from those who hear the arguments? 

To deliver an opinion is the right of all men; that of constituents is a weighty and 
respectable opinion, which a representative ought always to rejoice to hear, and which 
he ought always most seriously to consider. But authoritative instructions, mandates 
issued, which the member is bound blindly and implicitly to obey, to vote and to 
argue for, though contrary to the clearest conviction of his judgment and conscience, 
these are things utterly unknown to the laws of this land, and which arise from a funda¬ 
mental mistake of the whole order and tenor of our Constitution. 

In 1870, Senator Lamar, later one of the venerable justices of the 
Supreme Court of the United States, received instructions from his con¬ 
stituents in the State of Mississippi to vote for the Bland bill. His 
reply was as firm as it was touching: 

Mr. President, between those resolutions and my convictions there is a great gulf. 
I can not pass it. Of my love to the State of Mississippi I will not speak; my life 
alone can tell it. My gratitude for all the honor her people have done me, no words 
can express. I am best proving it by doing to-day what I think their true interests 
and their character require me to do. During my life in that State it has been my 
privilege to assist in the education of more than one generation of her youth, to have 
given impulse to wave after wave of the young manhood that has passed into the 
troubled sea of her social and political life. Upon them I have endeavored to impress 
that truth was better than falsehood, honesry better than policy, courage better than 
cowardice. To-day my lessons confront me. To-day I must be true or false, honest 
or cunning, faithful or unfaithful to my people. Even in the hour of this legislative 
displeasure and disapprobation, I can not vote as these resolutions direct. I can not 
and will not shirk the responsibility which my position imposes. My duty, as I see it, 
I will do, and I will vote against the bill. 

With respect to my conduct here, I am content to adopt the reason¬ 
ing and conclusions of such examples. Notwithstanding the demands 
which have been made upon us, in spite of those who regard this body 
as incapable of forming an intelligent judgment and powerless to 
execute any independent will, I intend to present, for such considera¬ 
tion as they may deserve, the reasons which compel me to regard this 
measure as unworthy of support. 


6 


THE INITIATIVE AND REFERENDUM. 


To begin with, who are its exponents ? What class or classes of 
men are actively advocating the application of the doctrines the 
initiative and referendum to the government of this State ? Is there 
anything in their learning, experience, attainments, or general stand¬ 
ing in the world of thought which inclines one in favor of the funda¬ 
mental change of Government which they urge ? 

First, a body of enthusiastic, sincere, and unselfish men, mistaken, as 
I am bound to believe, and for the most part untrained and inex¬ 
perienced in the science of government, but none the less honest and 
patriotic citizens, who believe that in extending the principle of the 
Angla-Saxon folkmote and the New England town-meeting to a large 
population, scattered over a wide territory, will be found a cure for 
all, or the large part, of the ills with which the bod}?- politic is said to 
be afflicted. There is much to be admired in the conduct of these 
men, however much it may be desired that they were employed in the 
promulgation of a principle of government more sane and sound and 
ultimately safe. Solely because of the high motives which actuate 
such men, their views are entitled to respectful consideration. 

The determined and unselfish, however ill-advised, endeavor of 
these people to accomplish something for the benefit of their State 
and Nation has at last aroused the attention and enlisted the support 
of two other classes of less worthy men. The faddist, the extremist, 
the enthusiast, the fanatic, the man of one idea, who has been unable 
to secure any substantial following, now T sees, or thinks he sees, in 
this reform great possibilities for the advancement of the interests of 
his hobby. Only permit him to get his scheme, which no deliberative 
assembly can be induced to seriously consider, before the people for 
a moment and he can perhaps succeed. And if perchance at the first 
attempt the people are sufficiently alert to defeat his plan, he may try 
again with better fortune. We w r ere better engaged in an effort to 
get rid of this sort of public pest than in considering measures cal¬ 
culated to advance the interests which he advocates. 

And then the demagogue, with ear to the political ground, eyes to 
the public gallery, and key to the back door of some editorial chamber, 
has observed the soothing effect of “initiative and referendum,” when 
oft repeated, upon his unsuspecting following. He prates of the rights 
of the people, demonstrates that in them lies all power, and weaves 
them on to follow him, their guardian and guide, into the land of polit¬ 
ical freedom, where the people will rule because in them rightfully lies 
all political power. 

Of course the people are the source of all political power, but, to 
quote from another: 

He who arrogates to himself any particular merit or virtue by pretending great solici¬ 
tude for the people, by constantly proclaiming this self-evident doctrine, is a dema¬ 
gogue. There is no great merit in loudly asserting what evervbody knows to be true. 
If anyone really believes that there is anyone to deny that the people must rule in 
this country, he dreams dreams. 

It is not my purpose to consume time in an effort to unmask the 
motives or analyze the logic of such men. It was long ago discovered 
that “it is a waste of lather to shave an ass. ” I am unable to discern 
anything in the character, training, experience, or performance of any 
of the advocates of this measure to commend it to our attention. 
Nevertheless, wdiat say the honest and unselfish men who are devoting 
their lives to teaching the doctrines under consideration ? 


THE INITIATIVE AND KEFEKENDUM. 


7 


We are told by the advocates of this particular measure that the 
representatives of the people in the legislative department of this State 
are unworthy of confidence and can not be trusted to do that which is 
for the best interests of the people. It is then insisted that by the 
enactment of this law all will be well, because the affirmative acts of 
a corrupt or ignorant legislature can be negatived, and its failure or 
refusal to enact desirable laws overcome, by the people themselves. 

I am not prepared to admit that this or any other general assembly 
is or lias been corrupt or heedless of the interests of the State. That 
there have been corrupt and worthless individual men sent here is 
doubtless true. But it will require more than mere irresponsible asser 
tion to convince me that the general assemblies of this State have not, 
as a rule, performed their legislative duty as they saw it. Some ridic¬ 
ulous, many bad, and a few vicious bills have been enacted into law in 
this State. Many hundreds of measures, every one of which had its 
enthusiastic supporters, have been rej^ted. But it is neither just nor 
honorable for those who recognize the faults of statutes passed, or who 
grieve for those rejected, to carelessly attribute either result to the 
wholesale bad faith of those now here or those who have preceded us. 

This much of the premise upon which the friends of this bill base 
their arguments I will concede: By far too many of the representa¬ 
tives which the people send to general assemblies of this and other 
States are unfit, or rather unprepared, for such service. Never more 
than to-day have I appreciated my own incapacity and lack of train¬ 
ing for the performance of the work which we are called upon to do. 
But the fault lies with the people themselves. If a few individuals 
and groups of individuals will cease their indiscriminate suspicion and 
abuse of their public officials; if the press will state more fact and less 
fiction relative to their conduct; if the electors of this State will wake 
up to a realizing sense of the fact that constitutional lawyers can not 
devise a government so perfect as to automatically run itself and 
wholly relieve them of the responsibilities of citizenship; then will 
more men of intelligence, training, experience, sound judgment, and 
capacity for public affairs be found, and be willing to be found, in 
this assembly, and more satisfactory results will be obtained. 

But, even if it be assumed that the premises of the friends of this 
bill are correct, it is demonstrable that the remedy which they pro¬ 
pose is not only based upon an erroneous principle of government, 
but must of necessity be productive of nothing but harm. 

The framers of the Federal Constitution, which, in so far as its basic 
principles are concerned, has been followed by every State in the 
Union, were thoroughly equipped for the work which they were des¬ 
tined to perform. The varied experience of some, the extensive read¬ 
ing and broad culture of others, and the sound judgment of all 
qualified them for the important duties which devolved upon them. 
Tb.ey were familiar with the character and history of all forms of 
government which had gone before. They knew, however, but two 
general forms of government—monarchical and purely democratic. 
They were sorely perplexed. A monarchical form of government was 
regarded as neither desirable for nor desired by the people of the 13 
original States. The ancient and medieval democracies, with the 
most minute workings of which certain members of the convention 
were remarkably familiar, had been acknowledged failures and had 


8 


THE INITIATIVE AND REFERENDUM. 


passed from view. By some providential fortune, the convention 
chose for us a middle ground and, practically for the first time m all 
history, conceived the idea and adopted for the United States the 
plan of a representative democracy. 

The idea that the voting population of this State should, as a whole, 
have an opportunity, at short intervals, to approve or reject matters 
of proposed legislation, assumes the practicability of a pure democ¬ 
racy, as distinguished from the representative democracy which was 
established by the Federal Constitution and approved by the consti¬ 
tution of this State. ... 

In the New York convention which ratified the Federal Constitu¬ 
tion, Hamilton said of a pure democracy: 

It has been observed by an honorable gentleman that a pure democracy, if it were 
practicable, would be the most perfect government. Experience has proven that 
no proposition in politics is more false than this. The ancient democracies, in which 
the people themselves deliberated, never possessed one feature of good government. 
Their very character was tyranny; their figure deformity. When they assembled, 
the field of debate presented an ungovernable mob, not only incapable of deliberation, 
but prepared for every enormity. In these assemblies, the enemies of the people 
brought forward their plans of ambition systematically. They were opposed by their 
enemies of another party, and it became a matter of contingency whether the people 
subjected themselves to be led blindly by one tyrant or by another. 

In one of his letters, Jefferson wrote: 

Modern times have discovered the only device by which equal rights of men can 
be secured, to wit, government by the people, acting not in person, but by repre¬ 
sentatives chosen by themselves. 

And again: 

A government is republican in proportion as every member comprising it has his 
equal voice in directing its concerns—not indeed in person, which would be imprac¬ 
ticable beyond the limits of a city or small township, but by representatives chosen 
by himself and responsible to him at short periods. 

So insisted Daniel Webster, in his great argument before the 
Supreme Court of the United States in Luther v. Borden; so spoke 
Woodrow Wilson within six months; and so says practically every 
recognized authority of standing in this or other times. 

The individual citizen should have the utmost possible to do with 
the government of his State and the administration of its affairs. 
But the capacity, power, and function of the individual citizen are, 
and must of necessity always be, limited. Except in the most simple 
of purely local affairs, he must, upon principle, rely for satisfactory 
results upon others. With respect to matters of state-wide impor¬ 
tance, the citizens en masse never have been and never can be able 
to act wisely. I make no distinction between the poor and the rich, 
the educated and those less fortunate. Thus acting, they are incapable 
of forming a wise judgment on the larger, the complex, and the some¬ 
times technical questions which arise in any department of the State. 
Such matters must, if they are to be wisely determined, be deter¬ 
mined by representatives of the whole people—men who know or 
will take the time to ascertain the facts in a special case, who can 
confer with other men of different views, who can deliberate with 
men representing opposing interests, and who can, after such 
consultation and deliberation, participate in the expression of a 
calm, dispassionate judgment. The best judgment of the individual, 
I care not who he may be, is of little value. That the individual, 


THE INITIATIVE AND REFERENDUM. 


9 


however intelligent he may be, shall be permitted to pass final judg¬ 
ment on any public question to which he has not given, and can 
not give, special study and attention, is not in accordance with any 
sound theory of democratic government. 

In the legislative, no less than in the executive and judicial, depart¬ 
ments of our government, the people must rely upon the good faith, 
intelligence, and judgment of their representatives. Any attempt 
to secure better results than can be secured under the present system, 
by permitting the individual citizen to express himself directly on 
matters of legislation, will, and must, defeat itself. If it be true that 
the people either can not, as some argue, or will not, as I insist, take 
sufficient interest in the already too numerous political contests and 
popular elections to select as their representatives men who will be 
a credit to the State and to themselves—if the people either can not 
or will not conscientiously perform their duties as citizens and electors 
in the careful selection of men—it is too much to expect that they can 
or will exercise any better faith or better judgment in the far more 
difficult matter of the selection of measures. 

The theory of the friends of this bill, and the principle upon which 
it is based, are fallacious. They are inconsistent with the American 
conception of representative government as applied to legislative 
affairs, and were carefully considered, ultimately denounced as 
worthless, and discarded in practice more than a century ago. 

The measure under consideration would be ridiculous, were it not 
of such serious moment. Should this constitutional amendment be 
adopted, it is fair to assume that the electors of this State will be 
called upon, year after year, theoretically to consider and actually to 
vote upon a constantly increasing mass of legislation. And this 
without any formal discussion, without serious deliberation, with 
no opportunity for debate, without information other than such as 
can be gathered from the newspapers, and wholly without the right 
or power to amend any measures submitted, even to the extent of 
correcting typographical errors. Every man with a hobby, every 
body of men with an intended reform, every organization with some 
ax to grind, every special interest with some selfish end in view, can 
initiate and submit for popular approval a statute to subserve the 
end desired. 

A further suggestion seems not to have received the attention which 
its importance merits. It should be remembered that it is now pro¬ 
posed to confer the power upon 8 per cent of those who voted at 
the last general election to submit for popular approval not only 
statutes, but amendments to the constitution as well. Not only so, 
but whereas under existing law, no more than six articles of the con¬ 
stitution of the State can be amended at one time; under the plan 
proposed amendments may be submitted to every article of the con¬ 
stitution at the same time. 

To one who has given such matters careful consideration, this is a 
most dangerous modification of prevailing practice. To many who 
have not investigated the subject, it appears as an experiment which 
should be adopted only with the gravest caution. The constitutions 
of this and other States have heretofore been regarded as something 
more basic, more stable, more sacred perhaps, than a mere statute. 
There are many, very many, of our people who still regard the con- 


10 


THE INITIATIVE AND REFERENDUM. 


stitution of the State as something not to be hastily or easily or fre¬ 
quently changed. And yet the advocates of the pending amendment 
propose to place the constitution upon exactly the same plane as the 
statute book. They propose to allow 8 per cent of the electors, and 
upon but four months’ notice, to submit for popular approval amend¬ 
ments to every article of the constitution—in e^ect, to submit an 
entirely new constitution—and to secure the adoption thereof in ex¬ 
actly the same way as if it were a statute of the most trivial character. 

The failure to distinguish between the general principles of gov¬ 
ernment announced by all State constitutions and the less important 
statute law does not disclose a high order of statesmanship on the 
part of the exponents of this measure, and the inevitable tendency 
of the adoption of such a scheme to destroy this distinction in the 
popular mind is an evil of perhaps indefinite but obviously grave 
import. 

But it is urged that, theory and the experience of history to the 
contrary, the initiative and referendum does actually work success¬ 
fully, notably in Switzerland and Oregon. 

The most authentic information which I have been able to obtain 
does indicate that in all except two or three of the larger cantons of 
Switzerland the system is productive of reasonably satisfactory 
results. But it by no means follows that it would do so under condi¬ 
tions existing here. Not to mention possible distinctions between 
the origin, character, and temperament of the people of Switzerland 
and those of this State or this country, a glance at other controlling 
conditions emphasizes this conclusion. 

Switzerland contains 15,965 square miles; Colorado, 104,000 square 
miles. This State would, in so far as area alone is concerned, make 
seven Switzerlands. Switzerland could be placed within the exterior 
lines of three counties of this State. On the other hand, Switzerland 
has a population of 3,325,000—over 200 per square mile; Colorado 
has a population of perhaps 800,000—less than 8 per square mile. 
The electors of Switzerland live in the closest touch with each other; 
those of this State are widely scattered. 

But in any truly suggestive comparison the basis should be the 
canton, not the entire federation, because it is the canton which pecu¬ 
liarly exemplifies the workings of the initiative and referendum in 
its governmental affairs. Fourteen of the 25 cantons of Switzerland 
contain less than 400 square miles; 4 contain less than 100 square 
miles—less than twice the area comprised within the city of Denver. 
The largest canton of Switzerland has approximately the area of 
Pueblo County. One canton has a population of 590,000; one, of 
430,000; three have from 200,000 to 300,000; ten have between 
100,000 and 200,000; and ten have less than 70,000. The largest 
voting population in any Swiss canton is approximated 116,000; the 
average is about 30,000. In six, all the electors assemble at stated 
times in mass meeting, discuss and deliberate upon affairs of local 
interest, and vote by a show of hands. 

These facts, if they indicate anything at all, tend to show that the 
initiative and referendum is feasible and admirably adapted for small 
and thickly settled communities. The conditions prevailing in the 
cantons of Switzerland are so closely analogous to those which ren¬ 
dered efficient the New England town-meeting, and our own local 


THE INITIATIVE AND REFERENDUM. 


11 


home rule in cities and towns, as to demonstrate a pure democracy 
to be, at least in theory, an almost ideal system of government for 
both. Where every citizen can take a personal part in the details 
of public affairs, there not only can be no rational objection to the 
principle of the initiative and referendum, but, as a practical working 
governmental device, it may be conceded to be exceedingly efficient. 
But where the population is large or is scattered over a wide area, 
where the interests of the people are diverse and conflicting, the plan 
is simply unworkable. Switzerland affords no proof that its system 
of pure democracy is suitable for, or can ever be adapted to, conditions 
here. Especially is this true when it is remembered that, even in 
that country, no uniform plan has been adopted, certain cantons 
haying the initiative, some the referendum, some both, and one 
neither. 

In any view of the conclusions based upon the experience of Switzer¬ 
land in this connection are purely negative. The most that can be said 
is that the results attained by the initiative and referendum are appar¬ 
ently satisfactory under the conditions the^e existing, and it would 
appear that they should be satisfactory under similar conditions 
existing elsewhere. But these conditions do not exist in any part of 
the United States, and it can not, therefore, be assumed that the 
scheme under consideration has any proper place in the governmental 
system of this or any other American State. 

An analysis of the actual results of the initiative and referendum 
in Oregon is more interesting and instructive. Positive, rather than 
merely negative, conclusions can be reached based upon the expe¬ 
rience of the people of that State. 

Oregon has a voting population of 110,000. The people are notably 
progressive and intelligent. If the principle of the initiative and 
referendum can properly find lodgment in any American State, it 
should be successfully applied here. But what are the results ? I 
assume that Senator Bourne has correctly stated the facts. In 1904 
two laws were submitted to the people for adoption or rejection. In 
1906 11 laws were so submitted. In 1908 the people passed upon 19 
separate measures. In 1910 the electors of that State, in addition to 
casting their vote for their public officers, will have the privilege and 
pleasure of voting upon the merits of 32 distinct statutes and consti¬ 
tutional amendments. And the end is not yet. Any system of 
government which imposes upon the voter the burden and responsi¬ 
bility of such a duty should receive the most careful scrutiny before 
it is incorporated into the constitution of this State. Every reason¬ 
able man must know, and does know, that the electorate of that State, 
or of any other State, can not thoroughly consider the many ques¬ 
tions submitted and intelligently cast its ballot under such circum¬ 
stances. 

And what has the initiative and referendum actually accomplished 
for the people of Oregon? By a vote of the people, the legislature 
has been authorized to fix the pay of the State printer. By a vote of 
the people, the date of the general election has been changed from 
June to November. By a like proceeding, sheriffs have bee given 
charge of county prisoners. At a general election the people have 
passed a law, initiated by those engaged in catching salmon with a 
wheel, which put out of business those who caught them with a net; 
and the selfsame people, at the same election, passed another law, 


12 


THE INITIATIVE AND REFERENDUM. 


initiated by those engaged in catching salmon with a net, which put 
out of business those who caught them with a wheel. And the gov¬ 
ernor of the State, to the end that its citizens may continue to pur¬ 
sue one of their most productive occupations, has attempted to arbi¬ 
trarily suspend the operation of both these laws until the legislature 
can afford relief. 

Another measure which was deemed of sufficient importance to 
submit to the entire people of the State of Oregon requires an indict¬ 
ment to be found by a grand jury; and by another very important 
measure a new county was created, thus affording new territory for 
the practical operation of the principles of direct legislation. I have 
been spared an inspection of the titles of the thirty-two measures which 
will be submitted for the prayerful consideration of the people of 
Oregon this fall, but I doubt not that the importance of some of them 
will take high rank with those which have been enumerated. 

With respect to the practical value of the referendum, as distin¬ 
guished from the initiative, it may be noted that the people of Oregon, 
in their legislative wisdom, rejected a measure calculated to expedite 
pending legal controversies by increasing the number of judges of the 
supreme court from three to five. The people have even nullified a 
law 7 permitting cities to regulate their local theaters. By a popular 
vote, a bill intended to increase the salary of the legislators of the 
State from $120 per year to $400 per annum was defeated. And, 
strangest of all, twice in tw T o years the good people of Oregon have 
refused to permit w 7 omen to vote, and a third opportunity is to be 
afforded them to pass a proper law r upon this subject. 

These are some of the practical results of the initiative and referen¬ 
dum in the State of Oregon; and it is a matter of no surprise that there 
is already a large and constantly increasing body of its citizens wdio 
are agitating its early abolition. 

A further significant illustration of the practical working of one 
element of this pretended reform is afforded by the experience of our 
own State with the referendum upon amendments to the constitution. 
The more experimental and more dangerous principle of the initiative 
aside, what can be learned right here at home as to the practicability 
and desirability of the referendum ? 

The people of this State since its admission have had submitted to 
them for their approval or rejection 31 constitutional amendments. 
Twenty-four have been adopted; seven have been rejected. The 
total absence of any discrimination among the electors respecting 
such constitutional measures, and the impossibility of any proper 
appreciation of the importance of the subjects submitted to" them, is 
evidenced by the fact that, as a rule, wdien several amendments have 
been submitted at one election, they have been either all passed or all 
rejected, and by almost the same, and in some instances identically 
the same, vote. In 1904 four amendments were submitted. All were 
adopted. Three of them received exactly 20,915 favorable and 12,880 
unfavorable votes. In 1884 three amendments were submitted. All 
were adopted, and by almost the same result. In 1886 three amend¬ 
ments were adopted by favorable votes of 2,806, 2,617, and 2,678, as 
against 740, 759, and 789 in the negative. 

The practical identity of such results demonstrates one of two 
things: Either the measures submitted appealed with the same force 


THE INITIATIVE AND REFERENDUM. 


13 


to almost exactly the same number of voters—an unreasonable con¬ 
clusion, because, of several measures, one, if the matter received any 
proper consideration, must of necessity have appeared more meritori¬ 
ous than others; or the people who voted upon them did not—or, as I 
believe, can not—adequately understand matters of that sort. The 
absurdity of having the people vote upon the wisdom of conferring 
upon a court the power to issue writs of habeas corpus, quo warranto, 
mandamus, and certiorari, is manifest; yet this is exactly wliat has 
been once done in this State. This amendment—a very desirable 
one—was adopted; but I can not believe that the greater part of 
those who voted in favor of it had any conception of what they were 
doing. 

Another startling fact is disclosed by an analysis of the refer¬ 
endum vote of the people of this State upon constitutional amend¬ 
ments. Several changes in our constitution have been made by a 
vote of less than 6 per cent of the total vote cast at the election. 
In one instance, what would certainly seem to have been a very 
desirable amendment was defeated by a vote of 2,303 as against 
692—a total vote upon the amendment of exactly 5 per cent of the 
total vote cast. On the average throughout the years, less than 
30 per cent of the people voting have expressed themselves at all 
upon even so important an issue as an amendment to the constitu¬ 
tion. I submit that this is not “government by the people/’ nor 
will an extension of this system promote “government by the people.” 
It is government by a minority—nay, it is government by a minority 
of a minority. This so-called reform makes of the constitution 
a football to be kicked only by the voters, who are but a minority 
of the people, and by such a minority of this minority as is suffi¬ 
ciently interested to participate in the game. 

If the elector either will not or can not, on rare occasions, take 
sufficient interest in proposed modifications of the fundamental law 
of his State to familiarize himself with and vote upon the questions 
involved, it can not be expected that he will or can do any better 
when confronted with a multitude of statutor}- laws submitted for 
his approval or disapproval. 

One further significant fact in this connection: Of the seven con¬ 
stitutional amendments which have been defeated by the people 
of this State four had in view improvements in the judicial system 
of the State. Three were intended to secure the payment of out¬ 
standing and honest debts of the State. The fact that all the amend¬ 
ments which have been defeated are included in these two classes 
demonstrates to my mind that the people as a whole can not, in 
the nature of things, appreciate the character and importance of 
measures of this character; for I will not believe that the people of 
this State really prefer an inferior or inefficient system of courts, or 
are disposed to repudiate their honest obligations. 

We have been told that the measure under consideration has been 
drafted with the greatest care; that it says exactly what it means, 
and means exactly what it says. But the friends of the bill have 
already in part receded from this confident position. They no longer 
proclaim with so great assurance that its adoption will place un¬ 
limited power in the hands of the people as it was intended to do. 
A cursory reading of the constitution, as it will appear if this amend¬ 
ment is adopted, will disclose something more: If it does not go so 


14 


THE INITIATIVE AND REFERENDUM. 


far in some respects, it is more far reaching in others than its 
advocates ever dreamed. 

It is now conceded that the power of the people reserved by this 
proposed amendment, to enact laws, is at least limited by that clause 
of the Federal Constitution which provides that no State shall rass 
any ex post facto law or law impairing the obligation of contracts. 
It is obviously no less true that the power of the people to legislate, 
even if this amendment is adopted, will be also limited by at least 
seven provisions of the constitution of this State left unimpaired 
by this measure. It provides—and, even if this amendment be 
adopted, will continue to provide—that: no law shall be passed 
impairing the freedom of speech (II, 10); no bill shall be passed con¬ 
taining more than one subject (V, 21); no law shall be amended, 
or the provisions thereof extended, except it be published at length 
(V, 24); no bill shall be passed allowing any extra compensation 
to any public officer after the services have been rendered or contract 
made (V, 28); no law shall extend the term of any public officer, 
nor increase or diminish his salary, after his election (V, 30); the 
public funds shall not be expended for denominational or sectarian 
purposes (V, 34; IX, 7). 

Attention is directed to these constitutional limitations upon the 
legislative power of the people under this new scheme, not that 
they are in anywise objectionable, but as illustrating the danger of 
accepting too seriously the confident assertions of our new-found 
leaders respecting the legal effect of what they have prepared and 
submitted as a sure guide to governmental perfection. 

Contrary to the intention of the framers of this measure, the power 
of the people to enact laws is, I suspect, also limited by not less than 
20 constitutional provisions conferring the express power upon, 
and making it the express duty of, the general assembly to enact 
laws of certain specified kinds. Upon the ratification of this amend¬ 
ment, the constitution of the State will provide that the people 
reserve the power to propose laws; but that the general assembly 
shall provide for the raising of all revenues (V, 31); divide the State 
into congressional districts (V, 44); provide for the enumeration of 
the inhabitants of the State (V, 45); fix the terms of the courts 
(VI, 20); pass laws to secure the purity of elections (VII, 11); desig¬ 
nate the courts and judges by whom election contests shall be tried 
(VII, 12); submit to the people questions of changing the seat of 
government (VIII, 2, 3); provide for the establishment and main¬ 
tenance of public schools (IX, 2); provide for the sale of public 
lands (IX, 10); provide for an annual tax to defray the expenses of 
the State government (X, 2); provide for the organization and classi¬ 
fication of cities and towns (XIV, 13); make provision whereby 
cities and towns may elect to be governed by general law (XIV, 14); 
provide for the organization of corporations (XV, 2); provide reason¬ 
able regulations controlling telegraph lines (XV, 13); provide for the 
regulation of mines (XVI, 2); provide by law that boards of county 
commissioners shall have power to establish rates for the use of water 
(XVI, 8); provide for the safe-keeping of public arms, military 
records, etc. (XVII, 4); pass homestead and exemption laws 
(XVIII, 1); prohibit the importation of adulterated liquors 
(XVIII, 5); enact laws to prevent the destruction of forests 


THE INITIATIVE AND REFERENDUM. 15 

(XVIII, 6); pass all laws necessary to carry into effect the provisions 
of the constitution (schedule, 4). 

The power of the general assembly with respect to the foregoing 
classes of legislation is, and will continue to be, exclusive, notwith¬ 
standing the power reserved by this amendment to the people. 
While the people may legislate under the provisions of this bill, it 
does not seek to modify, much less repeal, the many constitutional 
mandates to the effect that on certain matters the general assembly 
shall have exclusive legislative authority. 

But if, contrary to the intention of those who drafted this measure, 
the power of the people to legislate is in some respects restricted, it is 
not limited with reference to many subjects as to which all history 
and experience teach it should be limited. 

Since written constitutions have been known the people have 
always, and wisely, limited themselves as to the methods by which 
they should act, and the bounds beyond which they will themselves 
not go. At no time and in no American State has it been deemed 
wise that laws of certain kinds should be passed at all. Certain 
classes of legislation have been uniformly prohibited by the funda¬ 
mental law of every State. The constitution of this State is no 
exception. Therein the people declared that the general assembly 
shall pass no law retrospective in its operation, or making any irrev¬ 
ocable grant of special privileges, franchises, or immunities (II, 11). 
Again, the general assembly shall pass no local or special laws, grant¬ 
ing divorce; or changing county seats; or regulating county affairs; 
or changing the rules of evidence in any trial; or declaring any person 
of age; or giving effect to informal or invalid deeds; or providing for 
the management of public schools; or remitting fines, penalties, and 
forfeitures; or increasing the allowances of public officers; or changing 
the law of descent; or granting any corporation the right to lay down 
railroad tracks; or granting to any corporation any special or exclu¬ 
sive privilege, immunity, or franchise (V, 25). Elsewhere the general 
assembly is prohibited from prescribing textbooks for the public 
schools (IX, 16). The general assembly is prohibited from imposing 
taxes for county or city purposes (X, 3). The general assembly is 
prohibited from authorizing any expenditure of public funds unless a 
levy has been made to raise the funds to be expended (X, 16). The 
general assembly is prohibited from passing a law for the benefit of 
any railroad or other corporation, retrospective in its operation, or 
which imposes on the State or county a new liability in respect to 
transactions already passed (XV, 12). The general assembly is pro¬ 
hibited from authorizing lotteries or gift enterprises for anv purpose 
(XVIII, 2). 

The Constitution is—and, even if this measure shall be made a part 
of it, will continue to be—specific on these matters. Time and time 
again the general assembly is prohibited from enacting laws of the 
classes mentioned. But the people, under this proposed measure, 
may pass such laws. The right to do so is expressly reserved. 

This is a dangerous letting down of the bars. It is no answer to say 
that there is and will be no disposition on the part of the people to 
exercise this power. In times of peace, in the absence of public ex¬ 
citement, when all, including agitators and demagogues, are busy with 
their legitimate personal affairs, this no doubt is true. But the power re¬ 
served to the people to enact such prohibited measures will still remain. 


16 


THE INITIATIVE AND REFERENDUM. 


The constitutional prohibitions against the general assembly passing 
such laws was intended to safeguard the State, under all possible con¬ 
ditions, against the enactment of such laws at all. They have always 
been regarded, and are, unwise from whatever source they emanate. 
And the people, no more by direction than through their representa- 
tives indirectly, should be allowed, or, better, should not allow them¬ 
selves, to put them on the statute book. .... 

Notwithstanding the care with which this bill is said to have been 
prepared, it is obvious that there are many considerations which have 
not received the attention which the far-reaching importance of the 
subject requires. 

One further point remains. In my opinion the measure is repug¬ 
nant to the Federal Constitution. 

Section 4, Article V, of the Federal Constitution, so far as here 
applicable, is as follows: 

The United States shall guarantee to every State in this Union a republican form 
of government. 

Section 4 of the enabling act of this State provides for a meeting of 
the members of the constitutional convention; that, after organizing, 
they shall declare, on behalf of the people of the Territory, that they 
adopt the Constitution of the United States, and that the convention 
shall then be authorized to form a constitution and State government, 
this proviso being added: 

Provided, That the constitution shall be republican in form * * * and not be 

repugnant to the Constitution of the United States and the principles of the Declaration 
of Independence. 

The duty of the United States to guarantee to every State in the 
Union a republican form of government carries with it the correlative 
duty on the part of the State to establish and maintain a government 
republican in form. 

The requirement of the enabling act, that the constitution of Colo¬ 
rado should be republican in form, applied not only to the first consti¬ 
tution but to every amendment thereto which might be adopted. It 
is a continuing obligation resting upon the people of the State, whether 
the original constitution remains in force, whether it be amended, or 
whether a new constitution be substituted for the old. 

If this proposed amendment to the constitution establishes a form 
of government, in whole or in part, not republican in form, it is repug¬ 
nant to the constitutional and congressional requirements, and invalid. 

At the threshold, therefore, of this inquiry, it becomes important to 
determine what is the meaning of the expression u republican in form,” 
as applied to a government or a constitution. 

The convention which framed and submitted the Federal Constitu¬ 
tion for the adoption or rejection of the States did not loosely use 
words and phrases, but advisedly employed only such as would cor¬ 
rectly and technically express the meaning intended to be conveyed. 

The convention was influenced and guided by, or its work subjected 
to, the piercing criticism of such commanding intellects as Washington, 
Hamilton, Jefferson, Marshall, Franklin, and Adams—men whose 
names are inseparably woven into the world’s history, and a knowl¬ 
edge of whose utterances and achievements is essential to an intelli¬ 
gent study of modern government. 


THE INITIATIVE AND REFERENDUM. 


17 


As before suggested, the purpose of the convention was to form a 
government intermediate between a monarchy and a pure democ¬ 
racy—a government resting upon a popular basis, but so far departing 
from the primitive form of a pure democracy as to delegate the 
exercise of sovereign powers to independent but coordinate depart¬ 
ments. Such a form of government was correctly and technically 
designated as republican. It was neither a monarchy, an aristoc¬ 
racy, nor, as the term was then understood and applied, a democracy. 

One of the main features incorporated into the Federal Constitu¬ 
tion, the division of the Government into executive, legislative, and 
judicial departments, was recognized as essential to the creation 
and maintenance of a government republican in form, and that 
Constitution stands as the best exposition of the meaning of the 
term when found in the document itself or in acts of Congress, whose 
existence was provided for and whose powers were defined by that 
instrument. 

Not only was there thus created a precedent for a government in 
its essential features republican in form, but the Constitution recog¬ 
nized the existence of and necessity for the three fundamental and 
coordinate branches of the government in each State. Time and 
time again the Federal Constitution expressly refers to the execu¬ 
tive, legislative, and judical departments of the several States. 

Any State which, by its constitution, omits either of these depart¬ 
ments, or makes a radical departure from the recognized power and 
authority of any department, is necessarily out of harmony with the 
form of government recognized by the Federal Constitution as repub¬ 
lican. 

Judicial interpretation of the expression “republican in form” is 
rare, but the few cases found sustain the definition or construction 
which I have here advanced. In Minor v. Happersett (21 Wall., 162- 
175) the following language is used by the Supreme Court of the 
United States: 

The guaranty is of a republican form of government. No particular government is 
designated as republican, neither is the exact form to be guaranteed in any manner 
especially designated. Here, as in other parts of the instrument, we are compelled 
to resort elsewhere to ascertain what was intended. 

The guaranty necessarily implies a duty on the part of the States themselves to 
provide such a government. All the States had governments when the Constitution 
was adopted. In all, the people participated to some extent, through their repre¬ 
sentatives elected in the manner specially provided. These governments the Con¬ 
stitution did not change. They were accepted precisely as they were, and it is there¬ 
fore to be presumed that they were such as it was the duty of the States to provide. 
Thus, we have unmistakable evidence of what was republican in form, within the 
meaning of that term as employed in the Constitution. 

An examination of the forms of government existing in the 13 
original States discloses that all which had formally adopted con¬ 
stitutions prior to the time of the submission of the Federal Consti¬ 
tution provided for governments having the three separate and inde¬ 
pendent departments, and that those which were still acting under 
charters from the Crown subsequently adopted constitutions and 
organized governments in exact conformity with the requirement that 
they should be republican in form. 

S. Doc. 665, 62-2-2 


18 


THE INITIATIVE AND REFERENDUM. 


In In re Duncan (139 U. S., 449-461) Chief Justice Fuller uses this 
language: 

By the Constitution a republican form of government is guaranteed to every State in 
the Union, and the distinguishing feature of that form is the right of the people to 
choose their own officers for governmental administration, and pass their own laws, in 
virtue of the legislative power reposed in representative bodies, whose legitimate acts 
may be said to be those of the people themselves; but while the people are thus the 
source of political power, their governments, National and State, have been limited 
by written constitutions, and they have themselves thereby set bounds to their own 
power, as against the sudden impulses of mere majorities. 

And, referring to the earlier case of Luther v. Borden, the Chief 
Justice uses this language: 

Mr. Webster’s argument in that case took a wider sweep, and contained a masterly 
statement of the American system of government, as recognizing that the people are 
the source of all political power, but that, as the exercise of governmental powers 
immediately by the people themselves is impracticable, they must be exercised by 
representatives of the people. 

In L. M. & B. R. Co. v. Geiger (34 Ind., 185, 196, 197), the following 
language occurs: 

The third article of our constitution provides that ‘ ‘ The powers of the Government 
are divided into three separate departments—the legislative; the executive, including 
the administrative; and the judicial—and no person charged with official duties under 
one of these departments shall exercise any of the functions of another, except as in 
this Constitution expressly provided.” 

The same division of powers exists in the Federal Constitution, and in most, if 
not all, of the State constitutions, and is essential to the maintenance of a republican 
form of government. 

In Langenberg v. Decker (131 Ind., 471, 478), this language is 
employed: 

The division of powers made by our constitution exists in the Federal Constitution 
and in most, if not all, of the State constitutions. The powers of these departments 
are not merely equal; they are exclusive in respect to the duties assigned to each, and 
they are absolutely independent of each other. The encroachment of one of these 
departments upon the other is watched with jealous care, and is generally promptly 
resisted, for the observance of this division is essential to the maintenance of the 
republican form of government. 

From the foregoing the conclusion appears inevitable that, to create 
and maintain a government republican in form, there must be and 
remain the three great departments, legislative, executive, and 
judicial, through which, in their respective spheres, the sovereign 
powers of the people are exercised. If one department be omitted, 
the form is not republican. 

In 1876 the people of Colorado, in harmony with the thought 
prevailing at the time of the adoption of the Federal Constitution, 
and with the spirit which uninterruptedly continued until distrust of 
legislative bodies suggested the scheme of the initiative and referen¬ 
dum, adopted our present constitution. 

Pursuant to the requirement of Congress that the constitution 
should be republican in form and not repugnant to the Constitution 
of the United States and the principles of the Declaration of Inde¬ 
pendence, it was declared, in Article III, that “the powers of the 
government of this State are divided into three distinct departments, 
the legislative, executive, and judicial;” and, in Article Y, that “the 
legislative power shall be vested in the general assembly, which shall 
consist of a senate and a house of representatives, both to be elected 
by the people.” 


THE INITIATIVE AND REFERENDUM. 


19 


To the legislative department has been, and must always be, dele¬ 
gated the power of enacting laws. If this department be restricted or 
limited by the retention of its functions to be exercised directly by the 
people, the government is not republican in form, but sui generis— 
an illogical admixture of a republic and a pure democracy. 

An amendment to the State constitution providing that the people 
of the State en masse or by a majority vote should exercise judicial 
functions would impress the most casual thinker as being revolu¬ 
tionary in character, contrary to the spirit of republican institutions, 
and without validity. Such an amendment would constitute no 
greater inroad upon recognized, established, guaranteed, and required 
forms than an amendment providing that the people in the same 
manner might exercise legislative powers. 

A legislative department of the State, with full delegation of legis¬ 
lative powers, being essential to a republican form of government, 
those powers can not be surrendered or delegated by it; nor can they 
be resumed or retained and exercised by the people en masse or by a 
majority vote without infringing the Federal Constitution or violat¬ 
ing the mandate of the enabling act requiring that the State constitu¬ 
tion shall be republican in form. 

It has not been my purpose to consider the particular form in 
which this measure is now presented, nor to unduly prolong the dis¬ 
cussion by an analysis of its details. From my viewpoint it is enough 
that the entire scheme of the initiative and referendum is wrong in 
principle. It is subversive of representative government. It has no 
place m the system which has been adopted for our Nation and State. 
It can lead only to trouble and confusion; and, in my opinion, in the 
last analysis, it will be pronounced repugnant to the Federal Consti¬ 
tution. Because of these considerations, and because of my con¬ 
victions relative to the duties of a representative of the people upon 
this floor, I shall vote against the measure in any form in which it 
may be presented. 


o 


LIBRARY OF CONGRESS 



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